Why Mwilu Snubbed CJ Job - Law Expert

  • Deputy Justice Philomena Mwilu in court
    Deputy Chief Justice Philomena Mwilu in court
  • Deputy Chief Justice, Philomena Mwilu did not apply for the Chief Justice role after the position was declared vacant, following the retirement of Justice David Maraga.

    Other Supreme Court Judges, Justices Isaac Leneola, Njoki Ndung'u and Smokin Wanjala also snubbed the role. Speaking to Kenyans.co.ke, lawyer Apollo Mboya explained the reason why Mwilu and her colleagues stayed out of the race to succeed Maraga. 

    Mboya opined that the judges were still young and had enough time to apply for the job later on as the Constitution stipulated that they retire at 70 years. He added that their decision was not solely based on the fact that they were involved in the nullification of President Uhuru Kenyatta's win in the 2017 General Election as many speculated. 

    However, he stated that the role is a high-pressure job, which many lawyers and judges want to avoid, especially after Maraga set high standards amid frustrations from the national government. Maraga's successor would be on the spotlight and expectations would be so high. 

    Former Chief Justice David Maraga (right) hands over documents to then acting Chief Justice DCJ Philomena Mwilu (left) at a ceremony held at the Supreme Court on Monday, January 11, 2021

    The former State Counsel added that suitable candidates also declined to apply for the job as the interviews and vetting process were draining and exposing. 

    "Some of the applicants end up being embarrassed when they become the focus, and the Judiciary Service exposes intimate details of their life. The candidates are always asked to declare their wealth, and some are relevant agencies investigate some before they are cleared to vie," he said. 

    Mboya further analysed how Mwilu's decision affected the recruitment process. Among the applicants for the role are lawyer Fredrick Ngatia, Prof Otinga Mare, Prof. Moni Wekesa, Hon. Mr Justice William Ouko, Hon. Mr Justice D.K. Marete, Alice Jepkoech Yano, Hon. Lady Justice Martha Koome, Hon. Mr Justice Mathew N. Nduma and Prof Patricia K. Mbote.

    Others are; former Director of Public Prosecution (DPP) Philip Kipchirchir Murgor, Said Juma Shitembwe, Qtondi Ontweka and Ombongi Brian Matagaro.

    The attorney said that the Supreme Court judges have to adhere to the gender third rule, but this does not necessarily mean that the CJ has to be male owing to the fact that Mwilu is a woman. 

    "The Constitution does not stipulate that CJ must be male and DCJ a female or vice versa. It is just but a practice of fairness and adherence to the Gender third rule. However, Mwilu retaining her role hampers chances for female CJ applicants," Mboya said. 

    He added that the process to nominate a CJ is traditionally determined by various additional factors, such as regional balance, integrity, political affiliations and track record. Thus applicants from Eastern Kenya and nearby regions may be locked out as Mwilu hails from the region. 

    Judges, magistrates, Judiciary staff and other stakeholders bid farewell to retired Chief Justice David Maraga (front) outside the Supreme Court buildings on Monday, January 11, 2021